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Campbell v. Consolidated Rail Corp.

January 6, 2009

HAROLD E. CAMPBELL, JR., PLAINTIFF,
v.
CONSOLIDATED RAIL CORP.; AND CSX TRANSPORTATION, INC., DEFENDANTS.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiff commenced this action on December 28, 2004, pursuant to the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51, et seq. (See Dkt. No. 1, ¶ 4 [Plf.'s Compl.].) Plaintiff was employed by Defendant railroad companies from September 1976 to June 2005. Plaintiff alleges that while working within the scope of his employment as a welder/foreman, he was exposed to "excessive and harmful cumulative trauma to his hands." (See Dkt. No. 24, ¶ 8 [Plf.'s Am. Compl.].) Plaintiff alleges that these "injuries were caused in whole or in part by the negligence, carelessness and recklessness of the Defendants and their agents, servants, workmen and/or employees, acting within the scope of their employment." (Id. at ¶ 12.)

At the Final Pretrial Conference in this action on December 29, 2008, and in a written Order filed on December 30, 2008, the Court decided, or partially decided, several of the motions in limine pending before the Court. (Dkt. No. 98.) This Decision and Order decides three of the motions in limine that remain in this action, each of which was filed by Defendants.

The first of these three motions in limine requests that the Court issue an Order that precludes Plaintiff from introducing at trial any evidence regarding the Occupational Safety and Health Act ("OSHA") standards or alleged violations of OSHA standards. (Dkt. No. 71.) The second of these three motions in limine (called Defendants' "Omnibus Motion in Limine") requests, inter alia, that the Court issue an Order that precludes Plaintiff from introducing at trial any discussion, argument, testimony and/or evidence regarding (a) any purported Congressional intent behind the enactment of FELA, (b) a comparison between FELA and any workers' compensation acts, the fact that Plaintiff was not covered under workers' compensation benefits, or that Plaintiff's sole remedy is under FELA, (c) any other claims or lawsuits against Defendants, or (d) whether Defendants could have employed a safer method of maintaining Plaintiff's workplace. (Dkt. No. 73, Part 2, at 1-4, 10-13.) The third of these three motions in limine requests that the Court issues an Order that precludes Plaintiff from introducing evidence that Defendants lacked an ergonomic program and/or medical surveillance program. (Dkt. No. 75.)

For the reasons set out below, the Court grants in part, and denies in part, these three motions in limine.

II. DISCUSSION

A. Defendants' Motion to Exclude Evidence Regarding OSHA Standards or Alleged Violations of OSHA Standards

In support of their first motion, Defendants advance a two-pronged argument: (1) any discussion of OSHA regulations should be precluded as irrelevant under Fed. R. Evid. 401, because the Federal Railroad Administration ("FRA") guidelines preempt OSHA regulations; and (2) even if the Court finds that the FRA guidelines do not preempt OSHA regulations, evidence of OSHA regulations is inadmissible under Fed. R. Evid. 403, because the probative value of that evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. (Dkt. No. 71.)

1. Relevance

Under the Federal Rules of Evidence, "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. With respect to Defendants' argument that OSHA is irrelevant (in this FELA action) because the FRA guidelines preempt OSHA regulations, Defendants are certainly correct that FRA guidelines preempt some OSHA regulations.

Specifically, in 1970, Congress enacted the Federal Railroad Safety Act ("FRSA") in order to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101, et seq. The FRSA empowers the United States Transportation Secretary, acting through the FRA, to carry out the purpose of the FRSA by (1) "prescrib[ing] regulations and issu[ing] orders for every area of railroad safety," 49 U.S.C. § 20103(a), and (2) "carry[ing] out, as necessary, research, development, testing, evaluation, and training for every area of railroad safety," 49 U.S.C. § 20108(a). Indeed, OSHA recognizes that some of its regulations might be preempted by standards or regulations established by other federal agencies. See 29 U.S.C. § 653(b)(1) ("Nothing in this [Act] shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.").

Having said that, the Court hastens to add that FRA guidelines preempt only some OSHA regulations. The FRA has stated that it will assume exclusive authority for making regulations only in areas involving its special competence over "the safety of railroad operations," which it defines as "conditions and procedures necessary to achieve the safe movement of equipment over the rails." 43 Fed. Reg. 10,585 (March 14, 1978).*fn1 For example, the FRA has stated that such conditions and procedures include ensuring that workers "laying or repairing welded rail observe certain procedures impacting on the final condition of the track," and that "proper precautions [are taken] to assure that trackmen are not struck by trains." Id. However, the FRA has expressly stated that "most hazards related to the handling of welding apparatus are non-operational concerns," and thus remain subject to OSHA regulations. Id; see also Ass'n of Am. R.R. v. Dept. of Transp., 38 F.3d 582, 588 (D.C. Cir. 1994). It bears noting that the Court is unaware of any instance in which the FRA has ever implemented a relevant regulation specifically governing welders. See 29 C.F.R. § 1910.252. As a result, the Court concludes that the FRA has not preempted OSHA with regard to the use of welding equipment.

That conclusion does not end the Court's inquiry into whether OSHA is relevant to this FELA action because that relevance must be specifically identified. Based on a careful review of the applicable case law, it appears that, generally, where federal courts have found that the FRA has not preempted OSHA, those courts have found OSHA regulations to be admissible as some evidence of the standard of care in FELA cases. See, e.g., Robertson v. Burlington N. R.R., 32 F.3d 408, 409-11 (9th Cir. 1994) (affirming district court ruling that admitted OHSA's noise standards as some evidence of the defendant's duty of care) [citations omitted]; Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1165 (3d Cir. 1992) ("[T]he violation of the OSHA regulation was properly admissible as [some] evidence of [the defendant's] negligence . . . ."); Albrecht v. Baltimore & O. R.R., 808 F.2d 329, 333 (4th Cir. 1987) ("[A] better form . . . of the [jury] instruction would be to call to the attention ...


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